Succession of Cunningham

• Decision Date: 03 January 1918
• Docket Number: 22561
• Citation: 142 La. 701,77 So. 506
• Court: Louisiana Supreme Court
• Parties: Succession of CUNNINGHAM

77 So. 506

142 La. 701

Succession of CUNNINGHAM

No. 22561

Supreme Court of Louisiana

January 3, 1918

SYLLABUS

(Syllabus by the Court.)

'In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained without departing, however, from the proper signification of the terms of the testament.' Civ. Code, art. 1712.

'In case of ambiguity or obscurity in the description of the legatee, as, for instance, when a legacy is bequeathed to one of two individuals bearing the same name, the inquiry shall be which of the two was upon terms of the most intimate intercourse or connection with the testator, and to him shall the legacy be decreed.' Civ. Code, art. 1714.

'The olographic testament is that which is written by the testator himself. In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the state.' Civ. Code, art. 1588.

It is not necessary for the validity of an olographic testament that it be written on the same day and at one time. It suffices that it be written entirely, dated, and signed by the hand of the testator.

A change of intention of the testator from that expressed in the will must be made by the testator. The court cannot presume any change of intention for him, when he has done no act which supposes a change of will.

Divorce and settlement of community rights do not revoke a will previously made by husband or wife.

The act by which a testamentary disposition is revoked must be made in one of the forms prescribed for testaments, and clothed with the same formalities.

William J. Hennessey, Patrick Hennessey, and Gustave A. Llambias, all of New Orleans, for plaintiff appellants.

Anothony J. Rossi and Charles I. Denechaus, both of New Orleans, for intervener appellant.

Michel Provosty and T. Semmes Walmsley, both of New Orleans, for appellee Mrs. Elizabeth Grace Cunningham.

In this cause Mr. Justice PROVOSTY recused himself. O'NIELL, J., concurs in the decree, but not in the affirmance or approval of the decision in Succession of Lefort. 139 La. 51, 71 So. 215, and hands down a separate opinion.

OPINION

SOMMERVILLE, J.

The trial judge, in an ably written opinion, in favor of Mrs. Elizabeth Grace Cunningham, the divorced wife of decedent, has stated the facts of the case, and the law applicable thereto. It will be adopted as the opinion of this court. The legal heirs of Edward Cunningham have appealed.

The opinion of Judge Theard follows:

'Edward Cunningham died on June 27, 1915, leaving an olographic testament as follows:

'New Orleans La. July 6, 1909.

'Being of Sound Miend and good Bodly health I do hereby make this my last will and testement I give and Beaqueath to my Dear Wife all that I may die possessed of and all money due me from all sources and all Deposits in the New Orleans National Bank and the Hibernia Bank of New Orleans La.

'Written by my Self this Sixth day of July 1909 and Signed by my Self

'Ed Cunningham.'

'At the time of the confection of said testament the decedent was married to Elizabeth Grace. On May 7, 1914, she obtained against him a judgment of separation from bed and board. Seven days later, by notarial act, a settlement of the community of acquets and gains, dissolved by said judgment was effected between the parties, by the terms of which Mrs Elizabeth Grace, in 'settlement and partition of said community, and as a compromise of all rights and claims of the said Mrs. Cunningham and Edward Cunningham against each other,' received $ 4,500, and she transferred to the decedent 'all and singular such rights, title, and interest which the said Mrs. Cunningham has or may have had in and to the assets belonging to the community lately existing between her and the said Edward Cunningham, and more particularly such rights, title, and interest as she has or may have had to' certain real estate standing in her name, but acknowledged to belong to the said community.

'Part of the said real estate and some movables constitute the only assets left by the decedent.

'On June 14, 1915, Mrs. Cunningham obtained a judgment of divorce a vinculo matrimonii, thereby ceasing to be decedent's wife, thirteen days before his death.

'Among the effects of the decedent was found a document entirely written, dated, and signed by him, and which, literatim et verbatim, is as follows:

'New Orleans La May 13 -- 1914

'I Edward Cunningham being of Sound Mind and Bodely health and Knowing the uncertainty of life.

'I do Hereby make this my last will and testament.

'I wish that my Property at 1520 Dufossat St be rented also property 816 Arabella St be rented, until my debt to the Industria Homestead Association be paid The amount Borrowed this 12 of May 1914 is fifty Five Hundred dollars after the debt is prayed I wish that My Executor take care of my Brother Jams N. Cunningham and my Sister Mary and Such of her Children who may want help and I wish that the dufossat St. property be Kipt rented and the revenue applied to Care for my Brother James and my Sister Mary. The Executor may Sell the Arrabella St. property iff he deems fit, to pay of debt on both properties I also wish that a lot be purchased in the Metrie Cematiry and a nice tomb be erected and my body placed there in and that prares for the repose of my Sole may be Said once a month in the Holy Name Churche in Algiers and to be payed for by my Executor.

'The Commissions which ma be due me from the firm of Black Rogers & Co to be payed to my Executor The Expirations of Insurance on my books I leave to Clarence J Rogers of the firm of Black Rogers & Co I have Oil Stock Certificates in the Safe of Black Rogers & Co which I will to my Nephew J. L. Cunningham Jr

'I appoint my Brother John L. Cunningham of LaFayitte La my Executer without Bond

'I also apoint Peter Moony of New Orleans La as Co Executer without Bond

'New Orleans La February 5th 1915

'I give to my personal Friend Philip Reich now Clerk at Bostonian Boot Shop my Watch and to my Friend Rudolph Herepick now Engineer of Union Brewing Co my wach Chain

'Written in my own hand this fifth day of February 1915

Edward Cunningham'

'Another instrument, written and dated by the decedent on May 17, 1915, was also found among his papers, but, as it bears no signature, it is of no effect as a will.

'The testament of July 6, 1909, which, at the request of Mrs. Elizabeth Grace, divorced wife of decedent, was admitted to probate and ordered executed by this court, is attacked by decedent's brothers and sisters, on the ground that it lapsed for want of a legatee, the universal legacy therein having been made to decedent's wife and he having no wife at his demise; and on the further ground that it has been revoked by the aforesaid act of settlement of May 14, 1914, by the instrument of May 13, 1914, February 5, 1915, if held to be a valid testament, and by the judgment of divorce of June 14, 1915, which effected a change in the relations of the parties.

'One of the sisters, Mrs. Mary Brookes, a beneficiary under the instrument of 1914-1915, insists particularly that it is the last will of decedent, and as such entitled to probate and execution. The other brothers and sisters deny the validity of said instrument as a will, for the reason that it is not signed and contains vague and illegal dispositions. Mrs. Elizabeth Grace also denies its validity, for the same reasons, though admitting that the last disposition, dated February 5, 1915, may be upheld as a separate testamentary disposition.

'Concerning the testament of 1909, it is contended that as the legacy to 'My Dear Wife' is not made to Mrs. Elizabeth Grace by name, it was meant for the person, whoever she might be, who would be the wife, at the time of death of the testator, and not for the person actually married to him at the time of the confection of the testament. The testator, claims counsel for the brothers and sisters, wrote with reference to the period of his death, or he would have named his wife or referred to her as his present wife. The contention further is that the language is not merely descriptive of the legatee, but designates her relationship, and that, in any event, if the testator had in mind the person who was then his wife, his intention was that she should receive the legacy only if she continued in that relationship till his death.

'In considering the matter, reference to the French commentators will be instructive, because, although the Code Napoleon fails to contain rules for the interpretation of testamentary dispositions, such as are comprised within articles 1712 and 1723 of the Revised Civil Code of Louisiana, they have been consecrated by the French jurisprudence. Thus it is of the cardinal rule, laid down by article 1712, that 'in the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.' Also, 'in case of ambiguity or obscurity in the description of the legatee, as, for instance, when a legacy is bequeathed to one of two individuals bearing the same name, the inquiry shall be which of the two was upon the terms of the most intimate intercourse or connection with the testator and to him shall the legacy be decreed.' Article 1714.

'Dalloz, Codes Annotes, vol. 2, p. 659, No. 166, says:

'If it be indispensable that the beneficiary of the legacy be clearly designated, it is not necessary, under penalty of nullity, that the testator should indicate by his names and surname the person whom he wants to gratify; it suffices that he makes him known by...